Pat wrote:
No lift was individually labeled, which would have pretty well negated their use in court anyway had it been a "real" case.
I was reading this thread, and this quote jumped out at me because it reminds me of a case I worked a couple of years ago. In this case, there was a video of two individuals breaking into a liquor store, one of them jumped over the plexiglas wall. He was wearing gloves - which was quite obvious from the video. The crime scene investigator collected a perfect set of three fingerprints, and had no indication on the back of the print card of where they were from. He had a typed report that indicated that they were from the plexiglas, and I think there was a drawing in the report that was very general and vague regarding the location of the lift. The report was typed away from the scene, and there were no notes from the scene indicating where the prints were lifted.
There is more to this case, but to the point of Pat's quote - the judge allowed the print in, even though there was no indication on the lift card of where it was lifted, and even though the burglar was wearing gloves. I'm often surprised at what judges allow.
George
I can resist anything except temptation - Oscar Wilde
We sometimes get so accustomed to what we recognize as best practices or minimum standards of practice that we are surprised by court rulings. At the core of a judge's decision on admissibility is that analysis of whether offered evidence is more probative than prejudicial, whether its introduction is likely to be more informative than misleading. It's not the judge declaring that the evidence is credible evidence toward guilt or none guilt. It's merely whether it is indeed "evidence" under the rules of evidence and if might be potentially useful toward the ends of justice. Judges generally allow anything that are the sorts of thing that can be developed through argument. There's a great deal in every investigation that makes it into court but doesn't make any real contribution to the issues at trial. So stuff from the scene generally gets in. Evidence that the defendant attended a cock fight the month before the crime doesn't get in, unless the court is at least promised that some argument will be made that it's material, and when it's that kind of prejudicial fact, the attorney sponsoring it will probably have to explain privately to the judge just how it's going to become material enough to outweigh the negative impression it makes.
The fact that there's a tape that appears to show the actors wearing gloves is not part of the judge's analysis. Nor is whether they are labelled. They are fingerprints from the crime scene, and they are no doubt being admitted under the testimony of the officer that they are the same lifts made at the scene. That's enough. Attorneys on both sides may argue its meaning or whether it has any credibility to the central issue to be decided in the trial. Any judge would admit such evidence.
(I wonder if it was ever supposed to mean anything or if it was just put in with everything else of the scene investigation, something that's often done to show police diligence and to sort of convey to the jury that it was an important case. If the prints didn't belong to the defendant, and the prints were from where someone jumping the panel would leave them, it would be rather foolish for the state to introduce them, because a judgment that the actors were gloved from viewing a video isn't reliable, and the defendant could easily argue that they are clear evidence of innocence.)
The situation described in the original post is entirely another matter. The discussion took off on a tack concentrating on critiquing the testing, and I think that left an impression that the examiner's failed ID was the reason the judge instructed the jury. That's not the case. The judge did not instruct the jury to disregard the examiner's testimony because he judged her factually not reliable as an examiner. His statement that she is unreliable is how the jury should view the testimony, because that's the necessary interpretation in light of the government's Brady violation, and it was a good way to try to wipe the testimony from their consideration. He did it because the government failed to inform the defense of a potentially material fact about her performance. It's not the judge deciding that failing to make an ID on the test made her unreliable. He's just ruling that the defense did not have a fair chance to evaluate and explore the matter, that the defendant gets the benefit of doubts about how that information would have affected the outcome, and there was no way to correct the lack, especially in light of her testimony that suggested there had been no work issues at all. Had the judge known of the testing history, he would still have allowed her to testify. He's not saying he wouldn't. But he's saying the government knew of an arguably material fact beneficial to the defendant, and they didn't reveal it. How this would have worked on on appeal had the judge not struck her testimony is hard for me to say, since I don't follow such appeals from military courts where verdicts need not be unanimous.
"Nothing has any value, unless you know you can give it up."
I guess I'm confused by several apparent inconsistencies. First, the judge can hold a Daubert hearing in which he acts as "Gatekeeper" to keep "bad science" out of the courtroom. Second, he can hold that the fingerprint expert withheld Brady information by neglecting to disclose a missed identification on a proficiency test (I still don't understand how missing an identification makes the correct identifications less reliable). Third, in spite of some pretty blatant indications that the latent print lift itself was questionable in the case George cites, the judge allows it into evidence. Where was the "Gatekeeper" function in that?
I tend to infer that a judge can be as capricious as he wants and there need be little consistency between two judges, even working in courtrooms down the hall from each other.
The views presented in this post are those of the author only. They do not necessarily represent the views of the Fort Worth Police or any of its components.
I don’t see any conflict between the decisions. First and foremost (prior to determining relevance and reliability), the judge needs to determine if evidence is admitted lawfully. With the proficiency testing information not being disclosed, the judge determined the evidence wasn’t admitted lawfully and therefore excluded the evidence from the testimony. Brady applies regardless of whether or not the conclusions are accurate. In George’s case, the judge determined the evidence was admitted legally and therefore admissible, even though the evidence may have been questionable. The weight of the evidence can then be determined by the jury after the defense attorney points out that best practices weren’t used and there could be issue on the reliability of that evidence.
The legal rules on admissibility may be different in different areas so comparing different cases isn’t always appropriate since the evidence is being considered under different standards. A good example is the Rose case. In this case, the evidence didn’t comply with the Maryland State rules (Fyre-Reed) but it did comply with the Federal standard (Daubert). People may think that the Federal judge disagreed with the State judge but I think the Federal judge clearly stated that this was not the case; they were judging the evidence according to different standards.
Michele
The best way to escape from a problem is to solve it. Alan Saporta
There is nothing so useless as doing efficiently that which should not be done at all. Peter Drucker
(Applies to a full A prior to C and blind verification)
We have to clearly see the difference between deciding if something qualifies as evidence at all and deciding if something that qualifies as evidence in general is going to be admissible in the case at trial. Palmistry and astrology fail to qualify as any kind of evidence, both being inherently unreliable. Now, just to clarify, imagine that astrology was found to be capable of producing reliable results. There would still be the question of whether the astrologer whose testimony was being offered was credible. The first question of whether it can produce reliable results will be answered by the judge, after hearing evidence for and against its reliability offered by the attorneys. The second question, whether evidence from a reliable practice is, in this particular instance, credible, is a question for the finders of fact, the jury, or the judge when the defendants opts for no jury.
In the case we're talking about, the practice is fingerprint examination. Nothing I've heard suggests there was any fight over the potential reliability of fingerprint examination, so I'll assume that, as in almost all trials, fingerprints were taken to be general reliable. Now, although at first glance it appears the judge is deciding that the examiner is not credible, that's not quite true. Let's look at how this played out.
The government put forward an examiner and no doubt told the defense about her ahead of time. So far as the defense knew, there was nothing the government knew about her performance that could be seen as favorable to the defense. It is very significant that the examiner testified with a statement that could reasonably be taken that there had never been any shadow at all on her performance. Had the defense known of the testing issue, they would no doubt have explored it with a view to imply that the examiner was not 100% reliable. Whether that would have worked strongly in their favor is unknown. We would say probably not, but who knows? The point is very much that they did not get the chance, because they didn't know it until she had testified and was gone. There is no question that the information about testing is a fact that can reasonably be argued to be materially favorable to the defendant. The government knew of it. (For those who don't mess with these issues much, Brady applies to every government entity involved in the investigation, not just the prosecutor.) The government didn't reveal it in time for the defendant to prep for the issue and to explore it with the examiner.
Okay. Back to the judge's role in this. If all had gone according to Brady, if the government had provided the information it had, the jury would have heard the examiner and the exploration of the testing issue and would have weighed the examiner's testimony accordingly. The judge wouldn't have addressed the jury at all with specific reference to the examiner. The jury would have received the general instruction that they are the sole judge of the credibility of witnesses and that they should get their information strictly from the evidence and not from the attorneys. The examiner's testimony is "in." But having held that the government's failure violated Brady, the judge has the task of removing the examiner's testimony from the jury's consideration as fully as she can manage. So she told them to completely disregard her testimony. According to the defense attorney, she added that it can be considered unreliable. But I'm not at all prepared to take his statement as reflecting exactly what the judge said. But the point is, the examiner is to be considered out of the picture, as if she never appeared. Some judges would have simply said the jury should disregard her testimony. This judge maybe chose to tell the jury to consider her unreliable or to treat the testimony as if they found it unreliable. I makes no difference, because she is to be absolutely disregarded, and her reliability is meaningless. I suspect the judge was worried that fingerprint evidence is compelling and that you can't really erase it from the jury's memory, and she wanted to make it very clear, so that there could be no real argument on appeal that he couldn't cure the situation.
The bad thing is that, for all the reasons we've discussed, missing an ID under those circumstances could have been explained as due to the testing environment and such, and the jury would likely have bought it and taken the examiner as reliable. It's a fundamental matter of the government withholding something material and beneficial to the defendant.
It's not, to be sure, a crystal clear decision. When a case is appealed on Brady grounds, there is some harm analysis. If the withheld information could have changed the defense strategy or could reasonably changed the outcome, it's Brady. It's sort of a funny analysis in this case. The question of non-military cases is often whether it would have changed one juror's decision, thus changing the verdict. Here, you can apparently change a couple of juror's minds and still get a conviction. But the judge is not strictly doing harm analysis. She can't really analyze harm, because she can't know how cross-examination would have played out. The state didn't let that happen. She can only judge if it's material, and it clearly is, no matter how another examiner would view it. She is also sanctioning the government for the violation. But be very clear. She is not declaring Monica Wilk Garcia an incompetent or unreliable examiner. She is ruling that the government broke the rules and that it worked to make the examiner's testimony unfair evidence. It is in no way capricious. If I had exactly that situation in a case I was dealing with on appeal where the judge let the testimony stand, I would be worried that it would be reversed. It's actually an unusual situation, because the testing problem is not clearly one way of the other.
But the essential point here is that the judge did not quite find the examiner unreliable. (In a sense she did, by saying in effect that the jury didn't get to hear what was out there about her, so they can't rely on her testimony.) She really merely found, on account of the government's omission, that the defendant was deprived of a fair chance for the jury to hear about the issue and judge credibility accordingly. It's not capricious, because it leaves you with no uncertainty about the rules. If it leaves you uncertain about what's Brady material, you need only take the lesson that you can't expect the prosecutor to magically know what your agency knows. You're therefore responsible for thinking about what might be Brady material and letting the prosecutor know.
"Nothing has any value, unless you know you can give it up."
I probably should have been more explicit in my comment. I was simply pointing out that courts accept evidence that many of us may think is questionable. And, all of us get evidence that we may considerable questionable - the description on the latent card may be nonexistent, incomplete, or wrong, for example. As such, I suppose that one could argue that the test print in question is quite realistic of typical case work, and of something that may end up in court. I don't do fingerprint work anymore - none since retiring from Newport Beach in 2004, except that I do still provide some enhancements for fingerprint experts when requested. But, in my imaging work, I have seen judges make interesting decisions, and I've had some rather strange things cross my desk.
I can resist anything except temptation - Oscar Wilde
Working in a crime lab is really a great risk that is why being a chemist, I really don't want to work in such field. It really takes a lot of courage and determination.
It is common for an agency to allow occasional "missed Identifications" on proficiency tests. There is a lot of art in the search to discover something whether it is a latent print match within a stack of exemplars or a cartridge case in the grass. This type of discovery search is different than the actual comparison for individualization. Exclusion is another matter. To offer the conclusion of exclusion is to make an official conclusion that this print did not originate from this subject. Of course, you will most often need complete exemplars for comparisons, noting that "complete" is another relative variable in this case.
Some agencies record the search effort as "No Match Found" and testify as that their search did not discover any match. Yes the possibility exists that the match is there, just waiting for the defense to hire their own examiner for another search….
Yet without the stated fact that there is indeed a match there, the examiner must evaluate their efforts within the scope of diminishing return on their effort. The same is true for the search of the cartridge case in the grass. What is there? I did not find it after a thorough search. Perhaps a metal detector would help improve the odds of finding it “if” it were there. All said if an examiner has an occasional "miss" this is normal and most examiners evaluate their peer discovered “misses” to improve their search ability. Thus making them even better examiners. Should this examiner have more misses than average, then additional training is warranted. Otherwise, all is normal.
However, we should not expect a judge or jury to understand these details. Perhaps an official paper could be organized on search, misses, idents, and exclusions to allow us a standard reference for rebuttal?
All true, but it should be pointed out for perspective that you're one step beyond the issue in this trial. The point was that the import or lack of import of the testing thing was potentially arguable but wasn't made available in time to argue it. It's not whether you think it's an issue or know it's not. It's not even about what the judge thinks. Very likely, the judge wouldn't consider it too damaging to the examiner's credibility. It's really a simple matter, and I don't think a jury would find it difficult to understand it as it's been discussed here. But they never got to hear that, and that's the problem.
You can look at these discovery issues from the usual point of view, which is that the defendant didn't get the chance to explore it to their benefit. But the other way is to consider that the government witness didn't get the chance to explain why it's of little importance. The omission of the testing information was a simple error. It's not even a really culpable error. Prosecution should have asked about such things, and presumably didn't. But to ask about that would have put them way ahead of most prosecutors in diligence. The examiner was wrong to have answered as she did. She chose to interpret "problem with her work" in such a way as to rule out the testing situation. That was a poor choice, because in retrospect it can be viewed as concealing the truth. That, also, wasn't too culpable. It was probably a non-issue in her mind, but part of being a professional expert is understanding the legal issues of testimony. Many examiners wouldn't have done any better, but that doesn't make it less of an error. Defense counsel should have asked for the examiner's work file as soon as they knew about the print evidence. It's true that they have some legitimate expectation that the government will offer up that kind of Brady material, but there are other reasons to ask for the examiner's record. But again, that would be more diligent than most attorneys.
These things are not rare. You're depending on every person within every agency that has any investigative responsibility in a case to recognize possible Brady materials and hand it over to the prosecutor. If a lowly patrol officer happens to receive exculpatory information on the street and unilaterally decides to keep it to himself, and it later comes out, perhaps by the person who gave the information revealing it, it can get a case reversed, if it turns out to be important. That officer carries the full responsibility of the agency head, the case detective, and the prosecutor and gets no break for mistakenly thinking it didn't matter.
Sometimes these things happen, and they can happen like this one did, over something not so obviously important, except that it was, largely because of the peculiarity of this kind of military trial where conviction by a majority of jurors or all jurors makes a critical difference. It's not anything new, no big "wake-up call" for experts, nothing of the sort. It's legal trivia, except that the judge was bound to deal with it. If it has any significance, it is, as has been discussed, in the realm of how proficiency is tested, because if your test tends to declare an error under conditions that would not generate an error in real casework, you're creating issues that someone will have to deal with later.
I could have a possible issue with how the judge worded the statement to the jury. (assuming the news account is accurate.) But again, the judge was not ruling on credible admissibility, but was excluding it on the Brady issue and trying to positively take that testimony out of play with the jury. Telling the jury to think of it as not reliable probably did that about as well as it can be done. Merely telling a jury to disregard testimony has, I think, always been a joke. The jury thinks some legal trick has been pulled and doesn't really ignore it. But a diligent attorney in the future who actively searches for references to this examiner, will find this case and may well ask the examiner, "Is it true that in the trial of Joseph Bozicevich the judge told the jury to consider your testimony unreliable?" That's not much fun, but lots of experts have stuff that repeatedly comes up when they testify. There are some lessons here.
"Nothing has any value, unless you know you can give it up."